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August 9, 2012 at 7:12 PM

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A mesothelioma case at Todd Shipyards

Here’s a case about a business’s responsibility for an injured worker, as came down from the Washington Supreme Court Thursday, Aug. 9 (Macias v. Saberhagen Holdings):

From 1978 to 2004, Leo Macias was tool keeper at Todd Shipyards in Seattle. As part of his job he would take respirators from shipyard workers who had been working with asbestos and were finishing their shifts. He would chuck the respirators into a basket, sometimes causing “little poofs of dust.” Later he would go through the respirators, taking out the dusty filters and throwing them away. In 2008, he was diagnosed with mesothelioma, a type of cancer typically caused by asbestos dust.

According to the Court, Macias “maintained that he did not know he was at risk from exposure to the asbestos dust coating the used respirators and filters and that he never saw a warning to take precautions when handling and maintaining them such as wearing a respirator himself or wetting the respirators before disassembling them.”

Whose fault is this? It did not happen in the 1940s. It happened in the 1980s, 1990s and 2000s. The first fault is the worker’s himself. A worker in today’s world is assumed to use his intelligence. It’s common knowledge that asbestos is deadly, and it was common knowledge in the 1980s. An intelligent worker should not take risks like this. If his boss expects it of him, he should tell the boss where to get off.

The second fault is the employer’s. If you’ve got an employee chucking respirators into a bin and making “little poofs” of asbestos dust, you have a responsibility to correct that. And not in 10 or 20 years. Right away. Todd Shipyards is one of the defendants, as it should be.

Thursday’s court ruling was not about the shipyard. It was about the responsibility, if any, of the companies that had made the respirators and the filters. The man who got sick, Macias, was arguing that these manufacturers should be liable, too, because they had not provided any warnings for the people who cleaned their equipment.

The manufacturers argued that their equipment was not dangerous. They hadn’t put asbestos dust on it. Somebody else had. That’s a lame argument. The Court’s majority—Chief Justice Barbara Madsen and justices Tom Chambers, Mary Fairhurst, Debra Stephens and Charles Wiggins—argued that the respirators were designed to be used with asbestos. The risk to the worker cleaning the respirators was bound to come up, and therefore the manufacturer had a duty to warn him.

I think there is such a duty. The warning should be put on the box the respirator comes in, so that the buyer of the respirator knows it. Probably a warning should put it on the respirator itself, if it could reasonably be done.

The Courts dissenters—Justices Jim Johnson, Charles Johnson, Susan Owens and Gerry Alexander—argued that the respirators were designed to protect workers from a number of contaminants, not just asbestos, and they can’t warn the user about all of them. That's a point, but not crucial. A general warning about taking precautions when respirators have been used with dangerous contaminants would have been enough.

The dissenters also argue that respirators are safety equipment, and that penalizing the maker of safety equipment tends to undermine “the promotion of safe products.” Interesting point. Maybe it does.

To me, the main thing is that in the queue of responsibility, the manufacturer of the safety equipment is not at the head of the line. He’s in third place, at most. The big responsibility, in my opinion, is of the employer to provide a safe workplace and the worker to look out for himself.

That a case like this would happen at a major Seattle employer in the late 20th and early 21st century is shameful. We can do better than this.

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